Deposits under a simple partnership agreement. Property in a simple partnership agreement. Expenses under a simple partnership agreement.
The types of legal forms that are most applicable to improve the efficiency of economic activity include a simple partnership (hereinafter - the partnership), which is a temporary association for conducting business.
The distinguishing features of the partnership are the pooling of deposits and joint activities. For such agreements, the most important conditions are the distribution of risks, profits and losses between partners, the procedure for the formation of common property, the establishment of a method for conducting joint business of partners, the liability of partners for mutual obligations.
For the partnership, the principle of sharing profit received from joint activities between the participants, which according to the norms of the Civil Code of the Russian Federation is distributed depending on the size of contributions of partners in a common cause, unless otherwise provided by the partnership agreement or other agreement of the partners, is important.
Each participant in the partnership bears the necessary expenses. As a general rule, the procedure for covering expenses and losses resulting from their common activities is determined by their agreement. According to Art. 1046 of the Civil Code of the Russian Federation, in the absence of such an agreement, everyone incurs costs and losses in proportion to the value of his contribution to the common cause.
Consider the nuances that may arise in the reimbursement of expenses of partners on the example of judicial acts in the case No. A59-4716 / 2018.
The plot of the case:
SUTT LLC (partner 1) and Traskom-Leader LLC (partner 2), a partnership agreement was concluded, according to which the partners undertake by combining money, property, other material resources, personal professional experience, business reputation and connections, skills and the ability of employees to work together.
The comrades stipulated in the contract that the common company was not organized, each of the parties independently organizes the work of its office, all the expenses associated with the maintenance of deposits, the comrades cover from the income received from the general activity. Everyone has the right to reimburse the expenses incurred according to the list of expenses accepted for reimbursement, as expenses associated with the partnership's business activities (employee salaries, expenses for the purchase of work clothes, medical examinations, vacation pay, sick leave, etc.).
The partners determined the procedure for reimbursement of their expenses: partner 1 sends to partner 2 monthly information on the costs to be reimbursed, partner 1 independently pays the expenses from the current account; monthly, the partners sign a request for reimbursement of expenses of the partner 2, the reimbursement occurs within 10 days from the date of receipt of the application.
In the application of partner 2, the partners should indicate the amount of net profit received from the general activity, which is distributed by the general meeting of partners.
During the implementation of the contract, the partner incurred expenses, applications for reimbursement of expenses were signed by partner 1 without comment, but partially paid.
By a court decision, comrade 2 was declared bankrupt, this comrade appealed to the court with a request to recover debts from comrade 1 under the contract.
The defendant objected to the claimed claims because of the non-receipt in the common property of the partners of the sums of money from the counterparties to be distributed between the partners, and therefore there are no grounds for compensation of expenses of the partner 2.
By the decision of the court of first instance, the stated requirements were satisfied. Satisfying the requirements of the plaintiff, the court proceeded from the procedure established by the parties and the period for reimbursement of expenses and the fact that the defendant violated his obligations.
However, the appeal adopted a new judicial act, which was denied the stated requirements. The appeal in the decision indicated that there were no grounds for recovering money from the defendant under conditions of non-receipt of payments from third parties, which excluded the application of the agreed regime for the distribution of profits and losses.
The receiver of companion 2 filed a cassation appeal. The cassation agreed with the appeal order.
Judicial act: Resolution of the Arbitration Court of the Far Eastern District of 08/05/2019 in the case No. A59-4716 / 2018.
Court findings:
1. The cassation agreed with the conclusions of the appeal that the parties directly provided for the source of reimbursement of expenses under the contract - income from general activities, which is why the admissibility of compensation for expenses incurred by partner 2 from other means, including partner’s own funds, is not seen. Losses are not shared among the comrades.
2. The coordination of the term for reimbursement of expenses cannot be considered separately from the general condition on the possibility of such payment, namely, from the receipt of income from general activities at the appropriate stage.
3. Partnership 2 is entitled to exercise control over the fulfillment by partner 1 of obligations under the contract. The improper conduct of business by partner 1 (including the fact of receiving money from counterparties that allow distribution as income, or distributing it solely for their own benefit) has not been proved by the plaintiff.
4. The fact of indicating in the application for reimbursement of expenses the amount of net profit does not confirm the reality of receiving funds from counterparties, their availability at the time of signing the corresponding application, on the contrary, the presence of substantial debt and taking measures to receive funds was confirmed by the defendant.
Comments:
1) Under the partnership’s profit is meant the amount by which the partnership’s total property has increased over the reporting period, i.e. we can talk about net profit achieved as a result of the implementation of the relevant activities. Moreover, regardless of whether the result was obtained within the partnership - positive (profit) or negative (loss), it must be distributed among all parties to the agreement.
2) As a general rule, the procedure for reimbursing expenses and losses associated with joint activities of partners is determined by their agreement, the principle of freedom of contract applies to the agreement.
3) When making a decision, the court established exceptions to the general rule, concluding that, based on the nature of the legal relations of the parties to the partnership agreement, the plaintiff has no right to reimburse his expenses by another partner, as well as the right to recover penalties from the partner for improper performance of obligations .
4) This position is not innovative, previously it was already reflected in judicial practice. What is new is that the court proposed, when determining the amount of net profit, to take into account whether income was actually received, and taking into account this, determine the amount of expenses to be reimbursed.
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